basic answers to the questions artists face most

Is Creative Commons Good for Artists?

Trent Reznor (left) has elected to use CC and alternate payment methods to market Nine Inch Nails music.

Licenses, as I said last week, are a way for an artist to give permission to others to use his or her work. Licenses can be highly restrictive or a virtual give away. Creative Commons (CC) is a license, used mostly on the internet, that allows artists to give permission to others to use their work, so long as the user follows the limitations selected by the artist. CC is both new and controversial, but before all that, a simple description of what it does.

There are four “building block” permissions that a CC license can have:

Attribution: others may use your art, but only if they give you credit.

No Derivative: others may use your art, but they may not change it.

Share Alike: others may use your art and change it, but if they distribute it they must use an identical license to the one you chose.

Non-Commercial: others may use your art, but they may not charge money for what they create.

The four building blocks can be put together in six distinct licenses (attribution is in all the licenses), it is impossible to combine No Derivative and Share Alike because you cannot forbid someone from changing the art and allow them to change it at the same time (at least, not in this reality).

There are nearly 150 million images using the six CC licenses on flickr

The various CC licenses give artists the ability to communicate their intentions to other artists without them ever having to meet to hammer out terms of usage, saving time and money. In this way, CC can be great for remix communities (using the share-alike provision) or for independent film makers looking for cheap (free) background music. The internet allows for nearly unfettered communication and CC allows artists to speak a similar legal language. CC allows for agreements without the use of lawyers, or even talking to each other. A person in Russia can grab a CC image off flickr posted by someone in Sweden and know exactly how they may use it. Even to the degree that CC replaces what I do as an arts/entertainment lawyer, I think it’s great.

Lotus Root Children by Wei Li is a graphic novel published under the attribution-noncommercial-share alike license, meaning anyone can incorporate his work into theirs, but no one may charge for what they create.

No license is perfect for all situations, and that is true for the CC licenses. Some potential pitfalls to consider: If you don’t elect “non-commercial,” another person can incorporate your work in to theirs, sell it, and not pay you anything. The share-alike license is viral, and when combined with the non-commercial license creates a never-ending flow of work that no one can ever be paid for. If you elect only the attribution license, you have effectively donated your work to the world for whatever anyone will ever choose to do with it, and it is unlikely you will ever get control back. None of these are bad, it’s just important to understand what you are giving people permission to do with your work.

One thing I don’t like about the CC license is that it oversimplifies licensing law and options. The non-commercial license, for example, grants permission for others to copy, distribute, perform, display, or make derivatives. That’s the entire copyright bag of goodies. There is no way to limit others to only royalty free performances, but reserving the right to charge for distribution. I would like to see the ability to break down which rights can be given or not given under the non-commercial license so an artist can grant unlimited permission to display or perform, but retain copying and derivative work rights.

The CC licenses are presented using simple pictures and brief explanations of what the licenses do. What they accomplish in brevity, they lack in clarity. Should you choose to click on the “View Legal Code” link of each license, the text of the CC licenses prove to be just as wordy as any corporate contract.

The fine print of the attribution non-commercial license

A careful reading reveals such facts as the CC license is world-wide, non-exclusive, and lasts for the duration of the copyright. Because the CC license is non-exclusive, you are free to enter into other non-exclusives licenses with others, even for money. However, once permission is given to one party for non-exclusive use, you cannot enter into an exclusive deal with someone else. The “behind-the-link” fine print also makes it clear that CC is not a law firm, has not been hired by you, and if anything goes wrong, is not responsible to you. Again, good to know.

Last week, The American Association of Composers, Authors, and Publishers (ASCAP) sent an email to its members that characterized CC as a threat to musicians ability to be paid and an assault on copyright. ASCAP is a licensing house that arranges licensing and royalties for musicians. ASCAP, as the “about” page of the website states, “exists to ensure that music creators are paid.” That’s what they do. CC does not exist to ensure musicians get paid, but rather to foster creativity over the internet and allow artists to elect whether or not they seek to get paid. To call CC a threat to musicians or copyright is to call sailboats a threat to rowboats; both get you from one place to another, choosing one may exclude the other, but ultimately both have their place.

Multi-author websites like Wiki demonstrate the power and potential of the free exchange of information over the internet.

Is Creative Commons bad for artists? No. Is it good? Maybe. For the right artist working on the right project, CC will be great. It’s greatest potential, in my opinion, will be in fostering collaboration for non-commercial purposes in film, music, graphic design, authorship, and beyond. If, however, you want to collaborate with others to make money, especially through exclusive agreements, or want to reserve the right to take your art back from the public at some point, it’s probably best to steer clear of CC.

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Disclaimer

The Information on this blog is for education purposes only. This blog is not legal advice. Reading/commenting on this blog does not create an attorney client relationship. No information obtained through interactions on this blog will be deemed confidential.
I am a licensed attorney, but I am not your attorney. If you need legal assistance in an Intellectual Property or Arts/Entertainment related area, please contact an attorney. I am licensed in the state of Washington, and can also represent people in federal copyright or trademark matters.